might order a discontinuance. [Alderson J. There the costs were in the discretion of the arbitrator.]

Wilde. By the terms of this reference the costs are to abide the event of the award; that is, such a legal event or determination as should give the prothonotary authority to tax the costs. Under the present award the prothonotary would have no authority to tax the Defendant his costs upon the first, second, and eighth counts, although the Plaintiff has not succeeded on those counts.

Notwithstanding, therefore, the arbitrators have no discretion as to costs, by this mode of framing their award they have contrived to decide, that upon the first, second, and eighth counts, neither party should have his costs.

PARK J. (a) It appears to the Court that this objection is not to be got over. It is not competent to an arbitrator, unless where the costs are in his discretion, to omit deciding on the whole of the matters referred to him, so as to give them such a legal event as shall authorize the officer of the Court to tax costs. Here he could not tax costs for either party as to those counts on which there has been no decision, and therefore the rule must be absolute.

BOSANQUET, GASELEE, and ALDERSON JS. concurred.

(a) Tindal C. J. was at the Privy Council.

Rule absolute. (b)

(b) But see Dibben v. Marquis of Anglesea, post. 568.

1834.

NORRIS

v.

DANIEL.

1834.

April 24.

SIMS V. JAQUEst.

Plaintiff hav- UPON an affidavit that the Plaintiff, a stone-mason,

ing arrested Defendant for 27%., and his

demand having been reduced to 10%. by a claim on the part of the Defendant, the Court allowed the Defendant his costs under

43 G. 3. c. 46. although the Defendant's

claim was not

altogether undisputed.

had arrested and held the Defendant to bail for 271. 1s.; that at that time he owed the Defendant 17., the price Plaintiff had agreed to pay for three marble chimney-pieces, fully worth that sum; that at the trial of the cause the Defendant established this set-off, whereupon the verdict was returned for 107. only;

Talfourd Serjt. had obtained a rule nisi to tax the Defendant his costs, under the 43 G. 3. c. 46.

Andrews Serjt. shewed cause, on an affidavit by the Plaintiff that he had agreed to pay the Defendant 121., not 177., for the chimney-pieces, and that, only upon condition of their being delivered complete and ready for erection, which the Defendant failed in proving at the trial; but that the jury had taken into consideration other items in the Defendant's set-off which had been settled by the Plaintiff before the action. Andrews contended that the Plaintiff, having disputed the set-off on the ground that the chimney-pieces were not complete, the arrest could not be deemed to have taken place without reasonable cause. In the cases where the Defendant has been allowed his costs on account of the Plaintiff's demand having been reduced by set-off below the requisite amount, the set-off has been undisputed : Dronefield v. Archer (a), Austin v. Debnam (b).

(a) 5 B. & Ald. 513.

(b) 3 B. & C. 139.

Sed

1834.

SIMS

V.

Sed per Curiam (a). According to the Plaintiff's admission, coupled with the verdict, it is plain he had no pretence for disputing the Defendant's set-off. The Plaintiff does not depose that the chimney-pieces were JAQUEST. not complete, but merely that the Defendant did not prove them to have been so. The rule must be

Absolute.

(a) Park, Gaselee, Bosanquet, and Alderson Js.

MUMMERY V. CAMPBELL.

UPON application to this Court the Defendant was discharged out of custody, on the ground that she was a married woman, and had been arrested by a wrong name. No order was made as to costs.

The Plaintiff thereupon discontinued, and the prothonotary, having refused to tax the Defendant her costs of the application to be discharged;

Andrews Serjt. moved that he should tax them, contending that the Defendant was entitled to these costs as costs in the cause.

Bompas Serjt., who shewed cause, contended that the discharge of the Defendant was a matter of discretion with the Court, and as the Plaintiff might have proceeded with the cause, notwithstanding the Defendant's application, that application was collateral to the cause, and the costs of it could not be deemed costs in the

cause.

April 24.

Costs of an application to discharge Defendant out of custody on the ground of

coverture, are not costs in

the cause.

1834.

MUMMERY

V.

CAMPBELL.

The Defendant could not take them under the rule for her discharge, which was silent on the subject. And

The Court being of this opinion, the rule was

Discharged.

April 28.

The Defend

ELLIOTT V. PYBUS.

ant, who had ASSUMPSIT for goods bargained and sold; work

ordered a

machine to be

any agreement

and labour; and on an account stated.

At the trial before Arabin Serjt., in the sheriff's made, without court, London, it appeared that the Defendant had ordered the Plaintiff to make a ruling machine, according to a plan of the Defendant, and deposited 41. towards the payment.

as to price, paid money

on account when he saw it complete ; admitted it was made to

order; and requested the

maker to send it home, but

refused to pay the price demanded by him. The maker refused to deliver the

machine without receiving

the full

The Defendant from time to time superintended the construction of the machine; and before it was finished an alteration was made in its construction at his request. When it was complete he saw it, and paid 27. more on account, but omitted to come to a final settlement.

The Plaintiff thereupon sent to him to fetch the machine away, and pay 10l. 19s. 8d., the balance of the price.

The Defendant admitted that the machine was made according to his order, but requested the Plaintiff to send it home before it was paid for. This the Plaintiff refused to do, and ordered his attorney to proceed for payment. In answer to an application to that effect, the Defendant called on the attorney, complained of the exorbitance of the price demanded, and went away, proceed; when the Defendant saying he would not pay it. He returned, however, in

amount; for which he

ordered his attorney to

said he would

endeavour to arrange if they would give him time.

Held, a sufficient acceptance to entitle the maker to sue in an action for goods bargained and sold.

about

about an hour, and said he would endeavour to arrange it, if they would give him time.

The Defendant's counsel declined to address the jury, insisting that there had been no acceptance of the machine by the Defendant; that the property in it had never passed to him; and that, consequently, the Plaintiff could not recover on a count for goods bargained and sold, but should have declared specially against the Defendant for not fetching and paying for the machine he had ordered. Atkinson v. Bell (a) and Mucklow v. Mangles (b) were relied on. The learned Serjeant thought there had been ultimately a sufficient assent by the Defendant to the price demanded by the Plaintiff, to sustain the count for goods bargained and sold, and directed a verdict for the Plaintiff, with leave for the Defendant to move to set it aside, and enter a nonsuit instead.

Wilde Serjt. having obtained a rule nisi accordingly,

Talfourd Serjt. shewed cause. In Atkinson v. Bell, the patentee of certain spinning machinery, who had received an order from the defendant to have some spinning frames made for him, employed the plaintiff to make the machines for the defendant, and informed the latter that he had so done: after the machines had been so completed, the patentee ordered them to be altered: they were afterwards completed according to that new order, and packed up in boxes for the defendant, and the plaintiff informed the defendant that they were ready, but he refused to accept them: and it was held that the plaintiff could not recover the price from the defendant in an action for goods bargained and sold, or for work and labour, and materials. So, in Mucklow v. Mangles it was held that if a person contracts with another for a chattel which is not in existence

1834.

ELLIOTT

V.

PYBUS.

(a) 8 B. & C. 277.

(b) 1 Taunt. 318.

L1 3

at